Daily Comment on News and Issues of Interest to Michigan Lawyers

09/25/2013

Islamic Headdress In Court

Three years ago Michigan earned national attention for two cases on Islamic head gear. One case centered on the decision of a Wayne County circuit judge who required a woman to remove her hijab, a headscarf which covers the hair but not the face, to conform to a "no hats" policy. His decision was appealed to federal court, which upheld the decision on the grounds that the judge apparently did not understand the religious nature of the hijab and likely would have permitted its removal if he had. Here's the order (PDF). The other case involved a Hamtramck district judge who would not allow the plaintiff to testify unless she removed her niqab, which covers the whole face except the eyes. (Pictured) After an administrative public hearing that included testimony from the woman (wearing the niqab), the Michigan State Supreme Court issued an order giving judges "reasonable control" over what litigants can wear in court.

This month the legal spotlight on Islamic headdress in court has turned to England. A London criminal court judge has ruled that a defendant who wears a niqaab must remove it when giving evidence but may wear it at other times during trial. When she is not wearing it only the judge, jury and counsel will be able to see her face and courtroom artists will not be permitted to sketch her veil. The court's order distinguished between criminal courts and other court proceedings. Finding a "pressing need for a court to provide a clear statement of law for trial judges who have to deal with cases in which a woman wearing the niqaab attends Court as a defendant, the judge explained:

I accept that there are different considerations in these instances. For example, the public has a strong interest in encouraging women who may be the victims of crime from coming forward, without the fear that the court process may compromise their religious beliefs and practices. On the other hand, the rights of the defendant in any resulting criminal proceedings must also be protected. So there is a potential for a challenging conflict of competing public interests. A defendant may, of course, be a witness; but this does not define her role in the proceedings. As a defendant, she plays the central role throughout proceedings, and unlike a witness, she is brought before the court under compulsion and does not appear as a matter of choice.

The judge also comments on the awkward context of his decisonmaking:

I am a male judge dealing with an issue which mainly affects female Muslim defendants, and does so in an intimate way; though I make clear at the outset that everything I say in this judgment is intended to apply to defendants of either gender and to those of any religious faith, or none, in analogous situations. I am conscious also of the place of the Crown Court in the hierarchy of legal authority, and I express the hope that Parliament or a higher court will review this question sooner rather than later and provide a definitive statement of the law to trial judges.

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Islamic Headdress In Court

Three years ago Michigan earned national attention for two cases on Islamic head gear. One case centered on the decision of a Wayne County circuit judge who required a woman to remove her hijab, a headscarf which covers the hair but not the face, to conform to a "no hats" policy. His decision was appealed to federal court, which upheld the decision on the grounds that the judge apparently did not understand the religious nature of the hijab and likely would have permitted its removal if he had. Here's the order (PDF). The other case involved a Hamtramck district judge who would not allow the plaintiff to testify unless she removed her niqab, which covers the whole face except the eyes. (Pictured) After an administrative public hearing that included testimony from the woman (wearing the niqab), the Michigan State Supreme Court issued an order giving judges "reasonable control" over what litigants can wear in court.

This month the legal spotlight on Islamic headdress in court has turned to England. A London criminal court judge has ruled that a defendant who wears a niqaab must remove it when giving evidence but may wear it at other times during trial. When she is not wearing it only the judge, jury and counsel will be able to see her face and courtroom artists will not be permitted to sketch her veil. The court's order distinguished between criminal courts and other court proceedings. Finding a "pressing need for a court to provide a clear statement of law for trial judges who have to deal with cases in which a woman wearing the niqaab attends Court as a defendant, the judge explained:

I accept that there are different considerations in these instances. For example, the public has a strong interest in encouraging women who may be the victims of crime from coming forward, without the fear that the court process may compromise their religious beliefs and practices. On the other hand, the rights of the defendant in any resulting criminal proceedings must also be protected. So there is a potential for a challenging conflict of competing public interests. A defendant may, of course, be a witness; but this does not define her role in the proceedings. As a defendant, she plays the central role throughout proceedings, and unlike a witness, she is brought before the court under compulsion and does not appear as a matter of choice.

The judge also comments on the awkward context of his decisonmaking:

I am a male judge dealing with an issue which mainly affects female Muslim defendants, and does so in an intimate way; though I make clear at the outset that everything I say in this judgment is intended to apply to defendants of either gender and to those of any religious faith, or none, in analogous situations. I am conscious also of the place of the Crown Court in the hierarchy of legal authority, and I express the hope that Parliament or a higher court will review this question sooner rather than later and provide a definitive statement of the law to trial judges.